July 2020 Headnotes: ADR/Solo & Small Firm

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Dallas Bar Association

HEADNOTES |

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July 2020 Volume 45 Number 7

Focus | ADR/Solo & Small Firm

Windle Turley Honored as 2020 Trial Lawyer of the Year BY JOSHUA D. SMELTZER

In recognition of his incredible career advocating for injured clients, Windle Turley is the Dallas Bar Association’s 2020 Trial Lawyer of the Year. Dallas Bar Association (DBA) President Robert Tobey said that “Windle Turley is the perfect recipient of the Trial Lawyer of the Year award,” because “for 55 years, Windle has represented persons who have been injured. He has never been afraid to fight for the rights of his clients no matter what the odds are and who might be on the other side. He is a giant in the legal community, and he has been a role model and mentor to many of the best trial lawyers in Dallas. I could not be more excited to present this award to Windle Turley.” Turley was raised by a single mother in a small town in western Oklahoma. Prior to law school Turley studied physics, math, and philosophy and even considered a degree in theology. Always focused on finding a way to serve mankind, he spent some time as a young minister in rural churches in Texas. Eventually he decided that he could best serve mankind as a legal advocate and graduated from Southern Methodist University’s law school in 1965. Drawing from life experiences, Turley is known as a master story-teller, portraying the injustice suffered by his clients with both grace and skill. Board-Certified by the Texas Board of Legal Specialization in Personal Injury Trial Law, he has handled many disputes involving governmental issues, medical malpractice, construction and workplace negligence, aviation accidents, auto accidents, and defective products. Turley’s distinguished career also includes more than 50 articles on trial preparation and litigation, as well as two books (Aviation Litigation and Firearms Litigation). He is also often asked to teach classes and seminars on litigation topics in Texas and other areas of the country. Turley is married to his high school sweetheart, who worked at his firm as a legal assistant for almost 23 years. He has a daughter and a son, as well as two grandchildren. His daughter and granddaughter also work as attorneys at his firm. His law firm is known for its innovative settlement and trial techniques, including pioneering the use of video and other unique demonstrative evidence in the courtroom. He has received record-breaking jury verdicts and has been involved in several cases establishing new legal precedent. For example, as a young lawyer, he argued for an unmarried mother’s right for child support before the United States Supreme Court. At the time, the law did not require unwed fathers to support their children. Turley’s advocacy not only won a good result for his client but helped usher in a change in the

Bryan Fears and Majed Nachawati

Fears Nachawati Law Firm Supports Justice Forever Fund BY MICHELLE M. ALDEN

Windle Turley

law for Texas and other states. Turley was also influential in developing the crashworthiness doctrine used to help increase the safety of vehicles and aircraft for consumers. This helped solidify his reputation as one of the nation’s experts in tort litigation. Turley has also represented hundreds of victims of child abuse, including eight of the 11 plaintiffs in the highly publicized sex abuse case involving the Dallas diocese. At the time, the $120 million jury verdict was the largest ever in a sexual-abuse case involving the Catholic Church. The result helped create new standards for preventing abuse within the Catholic Church. An active member in the legal community, he is a member of the Dallas Bar Association as well as the Texas and Dallas Trial Lawyers associations, a founding member of both the Patrick E. Higginbotham American Inn of Court and Institute for Injury Reductions, and a former chair of the American Association of Justice, Aviation Section. Outside of the law, Turley and his wife enjoy spending time at a 25,000-acre western Oklahoma ranch they have slowly built since the 1980s. Turley also enjoys photography and has published a wildlife photography book on the monarch butterfly entitled The Amazing Monarch: The Secret Wintering Grounds of an Endangered Butterfly. Congratulations to Windle Turley, recipient of the Dallas Bar Association’s Trial Lawyer of the Year award. HN Joshua Smeltzer is a member of the Publications Committee and is a partner at Brown Fox PLLC and former U.S. DOJ Tax Division Honors Trial Attorney. He can be reached at joshua@brownfoxlaw.com.

Inside 10 Working with Contract Attorneys 14 Blending Partnerships - Working with Friends & a Means to an End 16 Why Small Law Firms Must be Ready to be Completely Online 20 Our Experiences with DBA WE LEAD

In these uncertain times, the Justice Forever Fund, which is the Dallas Volunteer Attorney Program’s (DVAP) Endowment, becomes even more critical. The Fund supports “justice for all people, for all times,” said former DBA President Michael Hurst, who had the idea to create the Fund, which will ensure adequate long-term capital for DVAP’s annual operating costs, even if traditional funding methods shrink or cease to exist. Fortunately, Dallas-based Fears Nachawati Law Firm has stepped up to assist the vulnerable in our community with a generous pledge of $50,000 supporting the Justice Forever Fund. The firm represents individuals, businesses, and public entities in cases involving business interruption insurance disputes, medical device and pharmaceutical liability, environmental damage claims, and serious personal injury and wrongful death. The attorneys at Fears Nachawati come from diverse backgrounds and practices with a united goal of achieving the best results for their clients. “The American civil justice system provides critical protections for citizens by leveling the playing field against even the most powerful interests, and the most important thing we as attorneys can do is to support the efforts of legal aid programs. We are honored to be able to help provide vital funding for DVAP in its efforts to provide access to the justice system for more Dallas County residents,” said Majed Nachawait.

DVAP is a joint initiative of the Dallas Bar Association and Legal Aid of NorthWest Texas. Since its founding in 1997, DVAP has become the largest and most comprehensive provider of free legal aid to low-income people in Dallas. The organization provides access to justice by recruiting, training, and supporting over 3,000 volunteer attorneys each year who take meaningful time from their “day jobs” to provide pro bono legal assistance. While all of Dallas County is suffering through the current pandemic, its growing poverty population bears the brunt of the impact. DVAP’s services are more important now than ever, particularly as members of the Dallas community struggle for access to scarce resources, navigating complex new benefits requirements and a now-virtual court system amidst the COVID-19 pandemic, specifically in the areas of: Family Safety. There has been a significant uptick in domestic violence incidents as victims are trapped at home with their abusers, making violence in homes more frequent, more severe, and more dangerous. DVAP’s volunteer attorneys help victims seek and obtain protection and family stability when they need it most. Shelter. As economic conditions worsen, many DVAP clients are now— or soon will be—unable to make regularly-scheduled rent payments without some deferral or assistance. DVAP’s volunteer attorneys help prevent evictions and homelessness by assisting vulnerable continued on page 22

Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/mentalhealthresources


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All meetings and events subject to change in connection with the ongoing coronavirus situation. Please check www.dallasbar.org and DBA Online enewsletter for current notices.

The DBA has formed a Coronavirus Task Force, which will provide members with up-to-date information in one location about legal ramifications of COVID-19, including CLE, legal research, and Dallas courts’ COVID-19-related orders and procedures. Go to www.dallasbar.org/COVID19Resources to see the DBA’s webpage on COVID-19.

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Grecia Alfaro at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.


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President’s Column

Headnotes

Our Volunteers and Members Make Us Strong BY ROBERT TOBEY

For a decade, DBA leaders counted on Karen McCloud. On April 9, we lost Karen after a lengthy illness. She will be dearly missed. The May edition of Headnotes has a wonderful article about Karen and her achievements. Karen served as President of the Dallas Women Lawyers Association, the Dallas Association of Young Lawyers, and the J.L. Turner Legal Association. She would have been President of the Dallas Bar Association in 2022. But what really made Karen special was her friendship. She befriended so many people in the DBA, and in doing so enriched their lives. Karen served as Chair of the Judiciary, Judicial Investiture, and Lawyer Referral Service Committees, Chair of the Solo & Small Firm Section, and as Board Advisor to the Family Law Section, just to name a few. If there was a project that needed to be done, you could be confident that it would be done on time and well if Karen was involved. DBA members loved Karen because they knew how much she cared. Karen was passionate about the Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program. She co-chaired the 2017 campaign. But we counted on her to help raise money every year—because she would not take no for an answer when it came to helping the poor. She also did things behind the scenes, such as selling raffle tickets at bar events. Volunteers like Karen make the DBA the best local bar association in the nation. The COVID-19 crisis has challenged the DBA in many ways. Our volunteers and members will need to step up the rest of this year and probably continuing into 2021 to enable us to do the important things we always do for the membership and the community at large. Here are some examples: Bar None and Evening with Walter Isaacson. Martha Hardwick Hofmeister has directed Bar None for 35 years and Tom Mighell has produced it for 25 years. Many of the cast members have performed year after year. They are dedicated. The proceeds from the show go to the Dallas Bar Foundation, which funds the Sarah T. Hughes Diversity Scholarship. The Hughes Scholarship was founded in 1981 for the purpose of increasing diversity in the Dallas legal community. Bar None normally runs for four nights in June. This year’s show has been postponed, as has the Dallas Bar Foundation’s Evening With dinner with Walter Isaacson. This will be a very lean year, so we need our members to contribute to the Dallas Bar Foundation to help fund the Hughes scholarships. Even if the show does not, the purpose for

the show must go on! DBA Home Project. David Fisk and Mike Bielby have done a great job chairing this committee for the past few years. The DBA Home Project has built over 25 houses with Habitat for Humanity. Normally, it takes about three months to build a habitat home at a cost of approximately $80,000. This year, the project was suspended after the first build day. We do not know when construction will resume. Not surprisingly, our fundraising is running behind normal. Your gifts to Dallas Area Habitat for Humanity that are sent to Dallas Home Project (http://www. dbahp.com/) will make a huge difference this year. Equal Access to Justice Campaign. Each fall we use the EAJ Campaign to raise money to benefit the Dallas Volunteer Attorney Program. It is the most important thing that we do, because DVAP is the only way thousands of people in the Dallas area gain access to the legal system. Our Chairs this year are Rocio Christina Garcia Espinoza, Vicki Blanton, and Meyling LyOrtiz. They were huge contributors to the sixth straight million- dollar campaign last year. This year promises to be an even greater challenge. Here are some ways for you to help: • Proceeds from the Golf Tournament benefit the EAJ Campaign. The Golf Tournament was postponed from April to October 27. Please participate! Even if you are not a good golfer, you will have a great time and the proceeds go to a great cause. Please contact our chairs, Steve Aldous and Brad Monk, and they can answer any questions. • Proceeds from the Bench Bar Conference also benefit the Dallas Volunteer Attorney Program. This year we will be bringing Bench Bar to you virtually on September 24, 8:30 a.m.-4:00 p.m. Even though this event will be virtual instead of our normal in-person conference, we need our members to support DVAP through this event. Please contact one of the Lead Co-Chairs Chad Baruch, Hon. Audrey Moorehead, or Susan Motley for more information. Lastly, we need your help with the Campaign. We always need volunteers to help call people. Out of our 11,500 members, we normally have about 700 contributors. We can, and should, do better! When one of our volunteers calls, emails, or texts you, please give. Even $10 makes a difference. We need your support more than ever in 2020 to help those who are in need. With the continued help of our volunteers and members, we are going to make it through this crisis with a stronger and even better bar association. Thanks for all you do for the DBA and the Dallas community!

Robert

Published by: DALLAS BAR ASSOCIATION

2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Robert L. Tobey President-Elect: Aaron Z. Tobin First Vice President: Krisi Kastl Second Vice President: Cheryl Camin Murray Secretary-Treasurer: Rocio García Espinoza Immediate Past President: Laura Benitez Geisler Directors: Vicki D. Blanton (Vice Chair), Rob Cañas, Jonathan Childers, Hon. Tina Yoo Clinton, Stephanie Culpepper (President, Dallas Women Lawyers Association), Isaac Faz (President, Dallas Hispanic Bar Association), Sakina Rasheed Foster, Justin Gobert (President, Dallas Association of Young Lawyers), Hon. Martin Hoffman, Kate Kilanowski, Bill Mateja (Chair) , Hon. Audrey Moorehead, Lindsey Rames, Bill Richmond, Mary Scott, Andrew Spaniol (President, Dallas Asian American Bar Associations), KoiEles Spurlock (President, J.L. Turner Legal Association), Amy M. Stewart, and Mary Walters Advisory Directors: Whitney Keltch Green (PresidentElect, Dallas Association of Young Lawyers), Marissa Hatchett (President-Elect, J.L. Turner Legal Association), Stacey Cho Hernandez (President-Elect, Dallas Asian American Bar Association), Jennifer King (PresidentElect, Dallas Women Lawyers Association), and Javier Perez (President-Elect, Dallas Hispanic Bar Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, Rebekah Brooker, Rob Crain, Michael K. Hurst, David Kent HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Annette Planey, Jessica Smith PUBLICATIONS COMMITTEE Co-Chairs: Andy Jones and Beth Johnson Vice-Chairs: James Deets and Elisaveta (Leiza) Dolghih Members: Timothy Ackermann, Logan Adcock, Wesley Alost, Stephen Angelette, Michael Barbee, David Black, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Jonathan Bridges, Amanda Brown, Angela Brown, Eric Buether, Casey Burgess, Cory Carlyle, Paul Chappell, Charles Coleman, Wyatt Colony, Shannon Conway, Natalie Cooley, Daniel Correa, G. Edel Cuadra, Jerald Davis, James Dockery, Angela Downes, Sheena Duke, Charles Dunklin, Alex Farr, Dawn Fowler, Juan Garcia, Britaney Garrett, Michael Gonzales, Andrew Gould, Jennifer Green, Kristina Haist, Susan Halpern, Bridget Hamway, Edward Harpole, Meghan Hausler, Jeremy Hawpe, Lindsay Hedrick, Marc Hubbard, Brad Jackson, Kristi Kautz, Thomas Keen, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravik, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jordan McCarroll, R. Sean McDonald, Kathryn (Kadie) Michaelis, Elise Mitchell, Terah Moxley, Daniel Murray, Jessica Nathan, Madhvi Patel, Keith Pillers, Kirk Pittard, Laura Anne Pohli, Luke Radney, Mark Rasmussen, Pamela Ratliff, David Ritter, F. Colby Roberts, Bryon Romine, Kathy Roux, Stacey Salters, Joshua Sandler, Matthew Sapp, Justin Sauls, Mazin Sbaiti, Mary Scott , Jared Slade, Thad Spalding, Jacob Sparks, John Stevenson, Scott Stolley, Elijah Stone, Amy Stowe, Adam Swartz, Ashley Swenson, Robert Tarleton, Paul Tipton, Michael Tristan, Tri Truong, Pryce Tucker, Adam Tunnell, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Director: Biridiana Avina LRS Program Assistant: Marcela Mejia LRS Interview: Viridiana Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Director: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Grecia Alfaro Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Star Cole, Tina Douglas, Carolyn Johnson, Andrew Musquiz, Alicia Perkins Community Engagement Coordinator: Marísela Martin Copyright Dallas Bar Association 2020. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.


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ADR/Solo & Small Firm

First Cousins: Collaborative Law and Early Dispute Resolution BY LAWRENCE R. MAXWELL, JR.

Collaborative Law and Early Dispute Resolution are processes that enable individuals and businesses to resolve disputes quickly and avoid protracted and costly litigation. The collaborative dispute resolution process was created in 1990 by Stuart Webb, a Minnesota family law attorney. The process is widely used in family law, both nationally and internationally. In 2004, a group of like-minded Dallas attorneys established the non-profit Texas Collaborative Law Council (now, Global Collaborative Law Council) with a mission of training lawyers and expanding the use of the process to resolve disputes in all areas of civil law. Several years ago, the ABA Section of Dispute Resolution appointed a task force to promote planned early dispute resolution. The process was recently formalized by the ABA Section and the non-profit Early Dispute Resolution Institute, with a mission of making resolution of disputes within 60 days a reality. This article will describe the similarities and point out the differences in the processes.

The Similarities

The objective of each of these processes

Collaborative Law

Early Dispute Resolution

Identify goals, interests and concerns

Initial dispute assessment

Disclosure of relevant information (Experts may be retained)

Information gathering (Experts, if appropriate)

Develop and brainstorm options (CL trained mediator, if appropriate)

Objective dispute evaluation (EDR trained neutral, if appropriate)

Evaluate options and resolution

Final resolution

is to achieve an enduring resolution of the clients’ dispute. Before pursuing either of these processes, lawyers are obligated to provide sufficient information to prospective clients to enable them to make an informed decision about the respective material benefits and risks of each, as well as those associated with litigation and arbitration. The processes contain carefully defined rules of cooperation as set forth in protocols of practice and written agreements of the disputing parties. Lawyers commit to following the applicable rules of professional

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conduct and the highest ethical standards. The agreements provide that the processes are confidential, voluntary, and that parties may withdraw at any time for any reason. Both processes are characterized by greater transparency, and clients are spared the time and expense consumed by attempts to withhold information that often characterizes litigation. Lawyers have special training in the processes that enable them to build trust and to guide their clients through the steps in the processes identified in the table at left. In both processes the lawyers zealously represent their clients in pursuit of the clients’ goals and interests. In litigation and arbitration, the client and the lawyer zealously focus on “winning.” In these processes they zealously focus on finding common ground to achieve a fair, economical and prompt resolution of the dispute consistent with the clients’ goals and interests.

The Differences

Although the processes are similar in their format and objectives, there are significant differences. Collaborative law is a client-driven process. The parties engage in interest-based negotiations as opposed to positional-bargaining. The lawyers’ task is to guide the clients through the steps in the process, and at each stage of the process the clients, with advice of counsel, are the decision-makers. The early dispute resolution process is not as client-driven as the collaborative law process–it is a blend of cooperation with advocacy, more focused on positional bargaining. In the collaborative process, the parties and their lawyer participate in face-to-face meetings from the beginning to the end of the process. Each party hears the goals,

interests, and concerns of other parties. In the early dispute resolution process, the parties receive communication channeled through their lawyers. The most significant difference in the processes is that in the collaborative process, if a settlement is not reached and the process is terminated, the lawyers agree to withdraw, and they cannot represent their clients in subsequent litigation or arbitration. With the withdrawal provision in place, lawyers and clients are able to focus their entire attention on resolution, without worrying about how something “will appear in court” and without the threat of “we’ll see you in court” if a settlement cannot be reached. In the early dispute resolution process if a settlement is not reached, the lawyers may continue to represent their clients in an adversarial process. However, a lawyer must terminate the EDR process if the lawyer’s client does not continue to act in a manner consistent with the objectives of a speedy, economical, and fair resolution of the dispute. The goal of Early Dispute Resolution to make resolution of a dispute within the first 60 days a reality may be overly optimistic, although it is a worthy goal. The Collaborative Law process is proving to be a cost- and time-saving process that is particularly beneficial for resolving disputes where maintaining relationships is important. Both processes provide a viable cost and time-saving alternative that will alleviate the “angst” felt by many clients in the litigation process. HN Lawrence R. Maxwell, Jr. is a collaborative lawyer, mediator, and arbitrator and was a co-founder of the DBA ADR and Collaborative Law Sections. He may be reached at lmaxwell@adr-attorney.com.

Our Expertise is Expanding. Meet our Newest Executives. Daniel B. Lorimer We are proud to announce that Dan Lorimer has joined Title Partners as Senior Vice President. Lorimer is responsible for generating new transactions, providing responsive communication between clients and escrow teams, and expanding and maintaining existing accounts. Prior to joining Title Partners, he served as Senior Vice President for Chicago Title Insurance Company’s operation in Dallas, Texas. Dan covers all property types including industrial, office, multifamily and retail real estate. Lorimer is a member of industry organizations including NTCAR, North Texas CCIM, NAIOP and The Real Estate Council. He is a graduate of Texas A&M University.

Michael R. Haas An exciting addition to the Title Partners team, Michael Haas has joined as Senior Vice President. With a keen eye to detail and tailored services for customers, Haas’ focus will be regional business development. Advising customers on local real estate practices and underwriting policies, he also is an expert in resolving difficult title related issues alongside underwriting counsel. Prior to joining Title Partners, Haas served as Vice President of Chicago Title-National Commercial Services. Haas has handled title insurance closings for a diversified portfolio and has a track record of success closing multifamily, industrial, office, retail, senior housing, medical office building, data centers and hospitality, regionally as well as nationally. Haas is a graduate of the University of Wisconsin.

5501 LBJ Freeway, Suite 200 | Dallas, TX 75240 | (214) 987-6789 | titlepartnersllc.com


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2020 DBA 100 CLUB - WE WANT YOU! What is the DBA 100 Club? The DBA 100 Club is a distinguished membership recognition category that consists of Firms, Law Schools, Organizations and Government agencies with two or more attorneys as well as corporate legal departments that have 100% membership in the DBA. Recognition is FREE and given to the 2020 DBA 100 Club members in our June, July and August Headnotes and at our Annual meeting in November. Please note that the DBA 100 Club is FREE recognition and open for renewal annually. We do not automatically renew an organization’s membership due to changes in attorney rosters each year. Do you see your name on the list? If not, you need to GET ON THE LIST! To become a 2020 DBA 100 Club member, please submit your request via email and include a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify the list with our member records and, if eligible, we will add your firm to the 2020 DBA 100 Club! If we receive your qualifying list by July 6, your firm will be included on the August DBA 100 Club recognition list in Headnotes.

Send in your list TODAY! DBA 100 Club Members as of June 12, 2020 Law Firms with 2 to 5 Attorneys Adair, Morris & Osborn, P.C. Adam L. Seidel, P.C. Addison Law Firm P.C. Albert & Stobaugh, PLLC Aldous Walker LLP Alexander Dubose Jefferson & Townsend LLP Anderson & Brocious P.C. Anderson Grossman PLLC Arnold & Freeman Ashcraft Law Firm Atkins, O’Toole & Briner, L.L.C. Atwood Gameros LLP Avant Law Firm Barbee & Gehrt, L.L.P. Bisignano Harrison Neuhoff LLP Blackwell & Duncan, PLLC Blankenship, Wiland & O’Connor, P.C. Bocell Ridley, P.C. Broden & Mickelsen Brusniak Turner Fine LLP Campbell & Associates Law Firm, P.C. Capshaw & Associates Carlock & Gormley Chen Dotson, PLLC Chris Lewis & Associates, P.C. Christiansen Davis LLC Clark Law Firm Crain Brogdon Rogers, LLP Davenport & Epstein, P.C. Davis Stephenson, PLLC Deans Stepp Law, LLP Duke Seth, PLLC Exall Legal Advisors, PLLC Fisher & Welch, P.C. Fuller Mediations FurgesonMalouf Law PLLC G.J. Chavez & Associates, P.C. Gauntt Koen Binney & Kidd, LLP Gillespie Sanford LLP Goldfarb PLLC Grau Law Group, PLLC Grogan & Brawner P.C. Hahn Law Firm, P.C. Hamilton & Squibb, LLP

Hance Law Group Hayward & Associates PLLC Henley & Henley, P.C. Herrera & Herrera Hitchcock Evert LLP Hoge & Gameros, L.L.P. Hollingsworth Walker Horton & Archibald, P.C. Hosch & Morris, PLLC Howard & Spaniol, PLLC Howell & Willingham, PLLC Hunt Huey PLLC Jameson & Powers, P.C. Johnston Tobey Baruch, P.C. Kabani & Kabani, PLLC Kellett & Bartholow PLLC Kinser & Bates, L.L.P. Langley LLP Law Offices of Maduforo & Osimiri Law Offices of Richard A. Gump, Jr., P.C. Law Offices of Terrence G. Turzinski, P.C. Lawrence Law PLLC Lidji Dorey & Hooper Lira Bravo Law, PLLC Little Pedersen Fankhauser LLP Lyons & Simmons, LLP Madson Castello, PLLC Marshall & Kellow, LLP Miller Mentzer Walker, P.C. Mincey-Carter, PC Mitchell & Jenkins PLLC MKim Legal Orenstein Law Group, PC Owen & Fazio, P.C. Peeples & Kohler, P.C. Prager & Miller, P.C. Quaid Farish, LLC Raggio & Raggio, P.L.L.C. Ramirez & Associates, P.C. RegitzMauck PLLC Richardson Koudelka, LLP Riney Packard PLLC Ritter Spencer PLLC Roy Petty & Associates, PLLC Russell & Wright, PLLC Sawicki Law Schubert & Evans, P.C. Schuerenberg & Grimes, P.C. Scroggins Law Group, PLLC

Sheils Winnubst, PC Skierski Jain PLLC Smith, Stern, Friedman & Nelms, P.C. Spencer & Johnson, PLLC The Perrin Law Firm The Vermillion Law Firm, LLC Tremain Artaza PLLC Turton & Pinkerton, PLLC Voge Rohe PLLC Walker & Long Webb Family Law Firm, P.C. Westerburg & Thornton, P.C. Whalen Law Office Wisener Nunnally Roth LLP Wolff Law, PLLC Wolfish & Newman, P.C. Woolley <> Wilson, LLP. Yarbrough & Elliott, P.C.

O’Neil Wysocki, PC Orsinger, Nelson, Downing & Anderson L.L.P. Passman & Jones, P.C. Peckar & Abramson, P.C. Ryan Law, LLP Scheef & Stone, L.L.P. SettlePou Shackelford, Bowen, McKinley & Norton, LLP Sheppard Mullin Richter & Hampton LLP Sommerman, McCaffity, Quesada & Geisler, L.L.P. Stacy Conder Allen LLP Steckler Gresham Cochran LLP The Ashmore Law Firm, P.C. Touchstone Bernays Winstead PC

Law Firms with 6 or More Attorneys Ackels & Ackels, L.L.P. Amy Stewart PC Bradley Arant Boult Cummings, LLP Bragalone Conroy PC Brousseau Naftis & Massingill, P.C. Buether Joe & Carpenter, LLC Burford & Ryburn, L.L.P. Burns Charest LLP Carstens & Cahoon, LLP Cavazos Hendricks Poirot, P.C. Cobb Martinez Woodward PLLC Connatser Family Law Cooper & Scully, P.C. Cowles & Thompson, P.C. Cozen O’Connor Crawford, Wishnew & Lang PLLC DeHay & Elliston, L.L.P. Durham, Pittard & Spalding, LLP Estes Thorne & Carr PLLC Fletcher, Farley, Shipman & Salinas, LLP Guida, Slavich & Flores, P.C. Hall Render Killian Heath & Lyman Jordan Flournoy LLP Klemchuk LLP KoonsFuller Linebarger Goggan Blair & Sampson, LLP Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Morgan, Lewis & Bockius LLP

Corporate Legal Departments Borden Dairy Company Buckner International Capital Senior Living, Inc. Compatriot Capitol Inc. Dunhill Partners, Inc. El Rancho Inc. Gaedeke Energy Genesco Sports Enterprises GFR Holdings, LP KidKraft, Inc. LALA U.S., Inc. North Texas Tollway Authority Rosewood Resources, Inc. Tenaska, Inc. Government Agencies, Law Schools & Organizations Dallas Baptist University Dallas County Community College District Dallas County Probate Courts Federal Reserve Bank of Dallas Mosaic Family Services Inc. UNT Dallas College of Law Special Recognition Student Members of UNT Dallas College of Law

DBA MINORITY CLERKSHIP LUNCHEON

ONLINE WEBINAR THURSDAY, JULY 16, NOON

THE NEW NORMAL: ADJUSTING TO A CHANGING WORK ENVIRONMENT/ETHICAL LAW PRACTICE DURING A PANDEMIC Speakers: Stephanie C. Gaston, Phillip L. Kim, Hon. Aiesha Redmond, Kenya S. Woodruff, and Amy M. Stewart, moderator ETHICS 1.00 QUESTIONS? EMAIL BAVINA@DALLASBAR.ORG


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D al l as Bar A ssoci ati on l Headnotes 9

TWO WORDS:

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10 H e a d n o t e s l D a l l a s B a r A s s ociation

Focus

Jul y 2020

ADR/Solo & Small Firm

Working with Contract Attorneys It is called the “gig economy”: working piecemeal jobs either part-time or full-time as an independent contractor rather than as a traditional employee with taxes withheld. “Hiring” a contractor is an attractive proposition for many solos and small firms who cannot afford to hire an employee outright or want to give a potential new hire a try out. Before you do, here are some issues to consider.

says that someone is an independent contractor “if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.” If the employer has the right to control the details of how the worker performs the services, the worker is an employee subject to tax withholding. The IRS looks at a number of factors to determine who retains control. Best Practice: Read IRS Publication 1779, Independent Contractor or Employee.

Have a Written Contract

Confidentiality

BY CARRON E. NICKS

Your relationship with an attorney contractor is not one of employer/ employee. It is more akin to a co-counsel association, which presents some interesting questions. Best Practice: Having a signed contract will go a long way in the rare event you have to defend your relationship with the contracting attorney.

Employee Classification

Just saying someone is an independent contractor does not make it so. If you get it wrong, you could run afoul of the IRS, the Department of Labor, or state unemployment and worker’s compensation authorities. There are no bright line rules. The IRS

Your freelance attorney is subject to the same disciplinary rules that you are, and that can cause some tension. Texas Disciplinary Rule 1.05(a) reads in part, “[A] lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i) a person that the client has instructed is not to receive the information; or (ii) anyone else, other than the client, the client’s representatives or the members, associates, or employees of the lawyer’s law firm.” This can pose a conundrum for the hiring attorney because the rule gives no safe harbor to independent contractors. Best Practice: Because the firm can divulge confidential information if the cli-

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ent consents, many firms include a section in the retainer agreement soliciting consent to divulge confidences if a contract attorney works on the client’s matter.

Conflicts of Interest

Because the contract attorney is also subject to Rules 1.06 and 1.09 regarding conflicts, both you and the contract attorney must perform a conflicts check, just as you would with any attorney you associate, employee, or otherwise. But that does not close the issue. Your conflicts might be imputed to the freelance attorney. The more access the contractor has to your confidential client information beyond the specific tasks assigned, the more likely he or she could be “deemed associated” with the firm and inherit its conflicts. See ABA Formal Opinion No. 88-356. Best Practice: Limit the contract attorney’s access to your files to just the discrete matters you assign, and obtain the consent of your client to use the contract attorney.

Billing the Contract Lawyer’s Time

If you pay the contractor $75 an hour, can you bill for the contractor’s time at your regular associate rate of $150 an hour? Yes, according to State Bar Ethics

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Malpractice Insurance

Your malpractice policy may or may not cover the work of contractors. You may be tempted to rely on the contractor’s insurance. But not all contract attorneys carry their own malpractice insurance, and even if they do, it will not cover you. Best Practice: Before you assign your contractor the first research memo, call your carrier to ensure that you and the contractor are protected. HN

Carron E. Nicks is the owner of Nicks Law Firm. She can be reached at carron@carronnickslaw.com.

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Opinion 577, as long as you both respect the requirements of two disciplinary rules. Under fee sharing Rule 1.04(f), the firm can charge the client more than it pays the contractor as long as the fees are proportional to the services performed (or the attorneys assume joint responsibility), the client gives written consent to the terms of the fee division, and the total fee is not unconscionable. But the arrangement may not be fee sharing if you make clear that you are responsible for paying the freelancer’s fee regardless of outcome of the case. Under Rule 7.01(d), the law firm must make clear on its bill that the contractor is not an employee of the firm. Best Practice: Bill the contractor’s fee as an expense without an upcharge.

On Friday, May 29, U.S. District Judge Lee Yeakel ruled in the lawsuit of McDonald v. Sorrels. In his statement, Judge Yeakel noted that compelled membership and financial support for the State Bar does not violate the lawyers’ rights to free speech or association. The final judgment ordered that the plaintiffs take nothing from their lawsuit and also pay the costs for the Texas Bar. Judge Yeakel stated that the U.S. Supreme Court has previously determined that states are allowed to form bar associations to regulate lawyers and improve the quality of legal services. He also said that activities that could be seen as political or ideological can still be financed by mandatory membership fees if they are germane to regulat-

ing the legal profession and improving the quality of legal services. In a statement to Texas Lawyer, State Bar of Texas President Randy Sorrels said that he’s pleased about the ruling. “Almost six decades of U.S. Supreme Court precedent supports the constitutionality of the unified bar structure,” he said. “The State Bar is carrying out its statutory obligations by regulating the legal profession and improving the quality of legal services in Texas.” In addition to the State Bar of Texas, the State Bar of Wisconsin also prevailed in the First Amendment case that cited the U.S. Supreme Court Janus decision. On June 1, the U.S. Supreme Court declined a petition for certiorari in Jarchow v. State Bar of Wisconsin. HN

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D al l as Bar A ssoci ati on l Headnotes 11

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12 He a d n o t e s l D a l l a s B a r A s s ociation

Column

Jul y 2020

Ethics

A Tribunal by Any Other Name BY JERRY R. HALL

A lawyer’s obligations to a tribunal—and even the obligations that accompany serving on one—reach beyond the door of the courthouse. By defining a “Tribunal” as “any governmental body or official or any other person engaged in a process of resolving a particular dispute or controversy,” the Texas Disciplinary Rules of Professional Conduct extend these obligations to a lawyer’s interactions with “referees, arbitrators, mediators, hearing officers and comparable persons empowered to resolve or to recommend a resolution of a particular matter.” Tex. Disciplinary Rules Prof ’l Conduct, Terminology (emphasis added). Adjudicatory Official or Law Clerk (TDRPC 1.11).The terms “Adjudicatory Official” and “Adjudicatory Proceeding” reach almost as broadly as “Tribunal” itself. “Adjudicatory Official” is defined as “a person who serves on a Tribunal,” and “Adjudicatory Proceeding” is defined as “the consideration of a matter by a Tribunal.” Id. Consequently, Rule 1.11’s limitations on adjudicatory officials include “not only judges but also comparable officials serving on tribunals.” Tex. Disciplinary Rules Prof ’l Conduct R. 1.11 cmt. 2. A lawyer who has participated personally and substantially by serving on a Tribunal for a given matter, such as an arbitrator or a mediator, cannot represent anyone in connection with that matter unless all parties to the proceeding have consented after disclosure. Id. R. 1.11(a).

The dangers contemplated by this limitation may seem self-evident in many cases. But Ethics Opinion 583 addresses one such scenario that might appear reasonable at first glance: a lawyer mediating a settlement between pro se parties and then preparing documentation to effectuate that settlement without representing either party. Tex. Comm. on Prof ’l Ethics, Op. 583 (Sept. 2008). As the opinion observed, “a lawyer acting as a mediator is subject to the requirements of Rule 1.11.” Id. “Although acting as a mediator with respect to a divorce does not constitute the practice of law, the preparation of documents to implement an agreement for divorce reached in a mediation clearly involves the provision of legal services by the lawyer/mediator.” Id. The lawyer cannot provide such services as an intermediary under Rule 1.07 because “divorce in Texas necessarily involves litigation,” and representing both parties to the same litigation would violate Rule 1.06(a). Id. The ethics opinion concluded that agreeing to such an arrangement before the mediation begins would violate Rule 1.11(b), while agreeing to provide legal services after the mediation would be governed by Rule 1.11(a). Id. Declining or Terminating Representation (TDRPC 1.15). Under Rule 1.15, a lawyer may be required to continue representing a client, “notwithstanding good cause for terminating the representation,” when the lawyer is “ordered to do so by a tribunal.” Tex. Disciplinary Rules Prof ’l Conduct 1.15(c). This rule does not limit this

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possibility to court orders as other rules do. See, e.g., id. R. 1.05(c) (allowing disclosure of confidential information when necessary to comply with a court order). Candor Toward the Tribunal (TDRPC 3.03). The requirement of candor may be the most well-known of a lawyer’s obligations to a tribunal. Rule 3.03 prohibits a lawyer not only from making a false statement of material fact or law, but also from failing to disclose controlling authority directly adverse to the position of the lawyer’s client, facts that must be disclosed to avoid assisting a criminal or fraudulent act, or unprivileged facts reasonably believed to be necessary for an informed decision in an ex parte proceeding. Id. R 3.03(a). The comments suggest a lawyer’s obligation not to offer or use evidence the lawyer knows to be false—along with the obligation of remedial measures after using evidence later learned to be false—also apply before any tribunal. See R. 3.03 cmts. 7–8, 14. Fairness in Adjudicatory Proceedings (TDRPC 3.04). Rule 3.04’s prohibitions on unlawfully altering, destroying, concealing, falsifying, or obstructing access to evidence apply to adjudicatory proceedings generally. See id.

R. 3.04(a) & (b). Rule 3.04(c) imposes additional limitations on lawyers representing a client before a tribunal, including prohibitions of habitual rule violations and references to irrelevant matters. Id. R. 3.04(c). Maintaining Impartiality of Tribunal (TDRPC 3.05). Rule 3.05 prohibits attempts to influence a tribunal by illegal or impermissible means, as well as ex parte communications with a tribunal unless specifically permitted by an applicable law, rule, or exception. Id. R. 3.05(a–b). Confidential ex parte communications with a mediator during a mediation, for example, may be “in the course of official proceedings.” Id. R. 3.05(b)(1); see also cmt. 4. Comment 2 to Rule 3.05 aptly summarizes the guiding principle behind these obligations: “in alternative methods of dispute resolution . . . as in more traditional settings, a lawyer should avoid any conduct that is or could reasonably be construed as being intended to corrupt or to unfairly influence the decision-maker.” Id. R. 3.05 cmt. 2. This principle of dispute resolution remains sound in any context. HN Jerry R. Hall is an attorney at Campbell & Associates Law Firm, P.C. and the Immediate Past Chair of the DBA Legal Ethics Committee. He can be reached at jhall@cllegal.com.

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14 H e a d n o t e s l D a l l a s B a r A s s o ciation

Focus

Jul y 2020

ADR/Solo & Small Firm

Blending Partnerships - Working with Friends & a Means to an End BY ADAM M. SWARTZ

It is an odd time, isn’t it? Although 2020 has thrown us a huge curve ball, people are finding ways to keep their careers/law practices alive and working to bring in the money that feeds their families. Some of us are stuck at home working solo, adding an additional layer to the lonely that lapsed social interaction often fosters, especially for extroverts & functionally extroverted introverts. Many attorneys are creating innovative workgroups or partnering up with friends to make ends meet and keep things rolling. As great as that can be, business owners who started as friends do not always end up friends, and the friendship can be decimated in the aftermath of the business partnership. There are personal and professional pitfalls to consider, including a detailed “just-in-case-we-breakup” document to help smoothly transition and preserve the relationships that matter most to you. Amico fideli nulla est comparatio— A faithful friend is a sturdy shelter.

Sometimes You Want a Workout Buddy

There are many benefits to working with at least one other person—accountability/motivation, sharpening technique, friendly competition, and innovating routines…free therapy sessions when you just can’t with that one client…. So many enduring American success stories have been built from the ground up by a few friends with an idea, or a vision, and/ or a complimentary work ethic. If friends have known each other for

years, and perhaps worked together in the past, their friendship may frame an unfair level of belief that the business partnership will be a success. A strong friendship creates the expectation of a higher level of loyalty, sharing, and understanding that is often absent in work environments. Shared responsibility can alleviate stressors of start-ups…who wouldn’t want a trusted partner to rely on in times of challenge? Often, friends who create business partnerships share complementary skill sets and the start-up can thrive and be energized by that working dynamic. For a lot of those reasons, about half of all startup businesses today are organized around a friendship. While a business partnership may be optimal in a start-up situation, in the end, a partnership should be focused on common goals with a similar mind, and a friendship should be a close relationship between two people who like doing things together and have built trust. A well-defined business partnership is essential to keeping the partnership, as well as the friendship, running smoothly. Saepe pristine sociis facti sunt amici pristine—former partners often become former friends. Many attorneys have partnered up with friends who became colleagues, and when disagreements arose or people found different paths to follow, there was just a scintilla left of the foundation that would inspire an amicable split. It is much like a divorce (and just as taxing as a real one). Betcha wish you had a pre-nup, huh? In this context, a contemplated separation agreement (CSA) is your prenup. A CSA with a mediation clause,

like a partnership agreement, is good for guidance when things in the partnership become cloudy, combative, or bellicose. Utilize a CSA to help keep your friendship solid. Here are some practical clauses to work into a CSA if your goal is to maintain an interpersonal relationship with someone who may at some point become a former law partner: Pre-arrange a planned separation scheduling order. In the event of a split where you seek to remain amicable and are balancing the needs/courtesy owed to clients, creating a timeline for certain events allows everyone to manage expectations, work through administrative necessities efficiently, and transition smoothly/with the least amount of crisis/ scramble (or the appearance of it); Pre-arrange default penalties in a compliant party’s favor when a separation scheduling order deadline is missed; and Pre-arrange what those administrative necessities may be and delegate those tasks to a trusted third party. [I would say “third party” with no hyphen and the

number spelled out]

The Big Takeaway

At the end of the day your short-term survival is essential…but at the end of the ‘day’, so are your truest friendships. When we struggle to keep our heads above water, and we turn to our nearest and dearest to help us lift up the life raft to keep us both afloat and in good/productive company, we have to take care to think a bit ahead so neither of us drowns. Amico fideli nulla est comparatio—A faithful friend is a sturdy shelter. After all, “A sweet friendship refreshes the soul.” Proverbs 27:9. Perhaps while we look for paths of least resistance to summit the now and arrive in our tomorrow, we should take care to protect the relationships that could otherwise last a lifetime, and provide the ballast to carry us there with wind at our backs and far less regret. HN

Adam M. Swartz, managing attorney of Swartz|Davidson, PLLC, and can be reached at adam@theswartzlawfirm.com.

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Jul y 2 0 2 0

D al l as Bar A ssoci ati on l Headnotes 15

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16 H e a d n o t e s l D a l l a s B a r A s s o ciation

Focus

Jul y 2020

ADR/Solo & Small Firm

Why Small Law Firms Must be Ready to be Completely Online BY THOMAS MADDREY

The COVID-19 pandemic has not only changed the way law firms need to work with their clients, but it also has shown why a robust remote work environment is critical to maintaining dayto-day operations. If your firm is not set up to work in a virtual environment right now, there are four key areas that you should address: (1) how to conduct virtual meetings with your clients and staff; (2) how to sign and notarize documents; (3) how to collect and organize files; and, (4) how to maintain your firm’s culture and morale.

Meetings with Clients and Staff

Not only is it important to have a system that allows you to give clients face to face interaction, but you must have a means in which clients can easily and efficiently contact you. The first step for a small firm moving to work remotely is to choose a firm-wide video conferencing platform that is used for all client

meetings and staff meetings. You need to ensure that each employee has a strong internet connection, as well as a webcam, microphone, and headphones. Importantly, you must ensure that your video conferences are secure. This means using unique meeting IDs, password protecting meetings, sending specific email initiations, and ensuring all your other settings are protecting your data. Frequently used video conferencing platforms include Zoom, Google Meet, and Microsoft Teams. Be sure to send out a communication to your current clients letting them know what measures your firm is taking to continue work as usual, what they can expect when working with you from this point forward, and overall that you are available to continue to meet their legal needs. Last tip? Make sure your lighting and background is professional and appropriate and that you are presenting you and your firm well.

The Law Requires Signatures

Thankfully, the world has been moving towards working completely paper-

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less for some time. That means that there are now many platforms that offer certified and verified eSignatures with a digital trail. This takes a lot of the guesswork out of making sure signatures are authentic and require only a computer. A few notable examples include DocuSign, HelloSign, and Adobe Fill & Sign. Once you have an eSignature system in place, you should take a second look at your contracts and make sure they include an electronic signature and counterparts provision. Lastly, while all states accept remote and virtual notarizations under the Uniform Electronic Transmissions Act and the E-SIGN Act, Texas is one of 23 states with specific provisions for notarizing something at a distance. In Texas, the Administrative Code specifies the requirements for online notaries, which is an additional certification for which any notary can apply.

Securely Using the Cloud for Document Storage

The legal field has been slow to progress toward a completely paperless profession, but now we cannot prolong the inevitable anymore. If you have not already, right now is a great time to start using a cloud-based system for document storage or invest in an online document management system. These increase efficiency and allow firms to maintain confidentiality as well as share documents internally and among clients. Microsoft SharePoint, Dropbox, and other proprietary systems make it possible to access your files from anywhere without the need for a

VPN and dedicated server. Heightened security measures also exist, such as HIPAA / HITECH compliance while using Dropbox. Regarding cloud-based storage of client and firm files, Ethics Opinion 680 from the Texas Bar says that: “Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may use a cloud-based electronic data storage system or cloud-based software document preparation system to store client confidential information or prepare legal documents. However, lawyers must remain alert to the possibility of data breaches, unauthorized access, or disclosure of client confidential information and undertake reasonable precautions in using those cloud-based systems.” Despite how helpful these digital platforms are, it is important to monitor them vigilantly and to notify clients that you are utilizing them in your engagement agreements.

It Is Possible

Transitioning your firm from a brick and mortar establishment to an agile, responsive, and remote workplace is no longer a luxury. Use this opportunity to establish the right protocols, procedures, and plans so that there is never a moment when you are separated from your clients and your files, and you can weather whatever comes your way. The bottom line is that you need to have the ability to adapt to changing times, and the tips above will help you along the way. HN

Thomas Maddrey is the founder and managing member of Maddrey PLLC. He can be reached at tbm@maddreypllc.com.

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Jul y 2 0 2 0

D al l as Bar A ssoci ati on l Headnotes 17

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18 H e a d n o t e s l D a l l a s B a r A s s o ciation

Jul y 2020

Telemedicine in Texas: The Pandemic Update BY KARIN ZANER

The February 2020 DBA Headnotes included my article titled Telemedicine in Texas: Should Your Physician Clients Do It? Then came the public health emergency (PHE) due to COVID-19. And, in a matter of mere months, the use of telemedicine has now become a central component of health care, at least in the immediate wake of this PHE. Much of my previous article, which detailed the various modalities allowed under Texas’s telemedicine statute (Tex. Occ. Code §111) still stands. But drastic new temporary measures enacted due to the PHE now enable physicians to provide much needed care for patients via “socially distanced” methods, while also protecting the health and safety of patients. The Texas Medical Board has provided FAQs Regarding Telemedicine During Texas Disaster Declaration for COVID-19 Pandemic (issued March 19, 2020, updated April 9, 2020), which provides critical guidance to your physician clients on best practices for telemedicine during the PHE. This article will cover some of the most important changes as set forth in these FAQs.

Telephone-Only Encounters Now Allowed

Most importantly, telephone-only

encounters are now allowed to establish a physician-patient relationship, and may be used along with various telemedicine modalities for the “diagnosis, treatment, ordering of tests, and prescribing for all conditions.” The same standard of medical care as well as the same billing standards apply whether the patient is seen via telephone, telemedicine, or in person, and medical records must be kept by the physician. A patient may give written or oral consent via telemedicine, and this consent should be documented in the patient’s medical record.

tion is issued for a legitimate medical purpose by the physician in the usual course of his/her professional practice, the telemedicine communication is conducted using an audio-visual, realtime, two-way interactive communication system, and the physician acts accordance with applicable federal and state laws. As long as these requirements are all met, a physician may issue the prescription using any of the methods of prescribing currently available and in the manner set forth in the DEA regulations (either electronically or by calling in to a pharmacy).

Changes to Prescriptive Authority

Billing and Coding Issues

Prescriptive refills can be done via allowable technology as long as there is an existing physician-patient relationship; however, providers must check the Texas Prescription Monitoring Program before providing any opioids, benzodiazepines, carisoprodol, or barbiturates. Generally, federal requirements have been adjusted to allow physicians to prescribe Schedule II through V controlled substances to patients without an in-person medical evaluation, provided that the prescrip-

SHOP ON AMAZON AND GIVE BACK TO DVAP You can now help the Dallas Volunteer Attorney Program by simply shopping on Amazon. Go online to https://smile.amazon. com/ch/75-2410525 to get started. When you shop through AmazonSmile, the AmazonSmileFoundation will donate .5% of the price of eligible purchases to DVAP.

Due to the PHE, the Texas Department of Insurance (TDI) now requires that state regulated health insurers and HMOs must pay in-network health professionals the same for telemedicine services as they would be paid for inperson services, including covered mental health services. The TDI now also requires that such insurers cover telemedicine services using any platform permitted by state law and not require more documentation for telemedicine services than is required for in-person services. Coding standards remain the same, which means that physicians must submit claims in accordance with CPT codes that reflect the services and modes of delivery as actually provided, including specific CPT codes for telemedicine-only and telephone-only services.

HIPAA Enforcement Discretion

Due to the PHE, the HHS Office for Civil Rights (OCR) has announced that it will not impose penalties for non-

compliance with the HIPAA rules and regulations in connection with the good faith provision of telehealth during the PHE. The OCR’s notice also indicates that HIPAA-covered providers can use any “non-public facing” audio and video communication technology available for remote communications with patients, such as FaceTime, Facebook Messenger, Google Hangouts video, or Skype. However, “public-facing” applications such as Facebook Live, Twitch, TikTok, and the like are specifically prohibited. Providers should still make sure that all encryption and privacy modes remain available to patients and notify patients of the inherent risk of using third-party applications, even if “nonpublic facing.” Of course, physicians should always continue to safeguard the protected health information (PHI) of their patients.

These Changes are Temporary and Evolving

Much sooner than was ever expected, telemedicine has quickly become a “new normal,” making it a public health and business necessity in Texas during this unexpected PHE. Of course, the changes discussed by this updated article are temporary and will continue to evolve. But there is no doubt that these emergency modifications will influence the future of telemedicine in Texas and the nation at large as the pandemic recedes and life returns to relative normalcy. Telemedicine has now taken a quantum leap forward, and the practice of medicine will never be the same. HN

Karin Zaner, of Zaner Law PC, may be reached at karin@zaner.law.

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CHRISTMAS BENEFITING VOGEL ALCOVE

Join the DBA's donation drive benefiting Vogel Alcove during the month of July. Donations can be dropped off at 1738 Gano Street Dallas, TX 75215 between 9 and 11 a.m. Items purchased online can be shipped to the same address. Summer needs include: Toddlers summer clothes (boys and girls 2T – 6T, specifically shorts and t-shirts), Summer shoes (boys and girls 2T – 6T), Sunscreen, & Bug spray Vogel Alcove is a non-profit organization on a mission to help young children overcome the lasting and traumatic effects of homelessness. Visit VogelAlcove.org for more infromation. Sponosred by: The DBA Community Involvement Committe


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D al l as Bar A ssoci ati on l Headnotes 19

ADR/Solo & Small Firm

Rescuing Your Practice from Sudden Cessation BY GREG SAMPSON

You get a call late in the evening from a close friend’s spouse, “Bob was in an accident and is unconscious in the ER.” You swallow hard and ask, “Will he be alright?” She replies haltingly, “They think he had a stroke, and it will be weeks or months in a coma… and then rehab, if he survives.” Just days before, Bob excitedly shared over coffee about the biggest trial of his career as a sole practitioner starting in two weeks. You ask yourself, “How can I help my friend, his family, and his clients so suddenly left without the one person who knows what needs to be done and where to begin?” “And how can I protect my own family and practice from such a calamity?” Sadly, this has become a common occurrence in recent years. Echoing findings of the National Task Force on Lawyer Wellness, regional offices of the Chief Disciplinary Counsel saw a significant rise in occurrences of lawyers dying or otherwise becoming “absent” from their law practice. In 2018, a “Cessations Docket” pilot program was created to field all such calls. It soon encountered scores of situations in which lawyers died, resigned, were disbarred or suspended, became disabled, or disappeared. Some lawyers intended to cease practice, others did not. Some survived personal crises, others did not. Lawyer suicides alone left hundreds of active matters pending with no lawyer at the helm. With nearly 30 percent of our state bar brothers and sisters over the age of 60, and increasing reports of the stress of being responsible for yourself, your fam-

ily, and your clients causing serious physical and mental health problems and substance abuse, our profession is primed for contingency planning. Part XIII of the Disciplinary Rules of Procedure provides a judicially supervised practice cessation procedure using a court-appointed custodian to take charge of abandoned practice files, notify clients of the need for new counsel and transfer files, notify the court, opposing counsel, file for continuances, etc., and dispose of closed files. While this procedure works, it can be slow, costly and absolutely depends on other lawyers stepping up to serve as custodians away from their own practices, who can be hard to find. Recognizing the need for an easier way to engage custodians to assist in cessation without a court proceeding, the State Bar initiated a special work group with key expertise, first, to implement a simple way for you to choose your own custodians and to encourage custodians to serve, and next, to design a comprehensive guidebook for succession planning for Texas lawyers, which is in the works. Launched in April, the first phase of this effort is now a reality and available online. You can now visit www.texasbar.com/ AM/Template.cfm?Section=Succession_ Planning&Template=/Succession/home. cfm where in a few simple steps you can appoint a custodian and an alternate to serve under Part XIII if ever needed. Your appointment request then goes to the appointee’s email where they can accept or decline and upon acceptance, the private profile page of both of you reflects the appointment. Of course, the appointee could later resign, and you can change your appointment at any time using the

Jeff Springer

Bill Ucherek II

same portal. You can also volunteer for possible appointment as a custodian for local cessations that may occur in your own area of practice, so please consider volunteering as the need is great. The introduction of proposed Rule 13.04 under Part XIII also encourages custodians to serve. Published earlier this spring for comment in the Texas Bar Journal, Rule 13.04 is now making its way toward a future referendum. Under this proposed rule your custodian may access otherwise confidential files with client consent in the process of closing your practice and without the need for court appointment and supervision. Perhaps most importantly, the proposed rule would limit liability of voluntary custodians to gross negligence or willful misconduct, the same as court-appointed custodians under Part XIII. The next phase currently being finalized by the work group is the promulgation of template forms you can use to (1) obtain client consent in engagement letFRIDAY,

ters, (2) enter an agreement with your designated custodian, and (3) notify clients upon serving as custodian. These forms will be added to other forms and practice guides on initiating cessation, what to do when serving as a custodian and succession planning that can be found on the new Succession Planning webpage initiated by the State Bar. In the meantime this material can be found at www.texasbar.com/Content/NavigationMenu/SuccessionPlanning/default.htm and on the Law Practice Management webpage at http://texaslawpracticemanagement.com/ free-resources/succession-planning/ Rescuing one’s practice from the perils of an unplanned cessation can now be accomplished more easily than ever by simply visiting the succession planning portal link cited above. HN Greg Sampson is Senior Counsel at Gray Reed, Board Certified in Estate Planning and Probate Law, and Co-Chair of the State Bar of Texas Work Group on Succession Planning. He can be reached at gsampson@grayreed.com.

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20 H e a d n o t e s l D a l l a s B a r A s s o ciation

Jul y 2020 DBA WE LEAD (Women Empowered to Lead) is a leadership program designed to address the challenges of high­performing women who have practiced law for 8 to 15 years. The purpose of DBA WE LEAD is to address the unique challenges facing women in the legal profession; to empower, educate and uplift women lawyers to take an already successful law practice to new heights; and to prepare lawyers for active professional leadership within their law firm, the business community and the community at large. This program is designed for all women lawyers in whatever career role they are in, from law firms to in­house counsel to those in private industry. To request an application or receive more information, contact Judi Smalling at jsmalling@dallasbar.org.

DBA WE LEAD class of 2020

Our Experiences with DBA WE LEAD

BY MEAGAN MARTIN POWERS

To say that DBA WE LEAD changed the trajectory of my career would not be hyperbole. The dream of Martin Powers & Counsel, PLLC—my law firm—had been in the back of my mind for years. DBA WE LEAD gave me the courage to put my name on the door. Literally. The year-long program is comprised of four half-day sessions plus small group meetings. Over our first two training sessions—focused on pitching and putting together a purposeful business development plan—MP&C was conceived. But it was our third session—focused on staying the course—combined with the year-long encouragement of my fellow WE LEADers that gave me the courage to make my dream a reality. We started that day with a message on resilience and then spent part of the afternoon in small groups workshopping with each other on how to handle difficult issues, such as asking for deserved origination credit

or making the business case for partner. Then we heard from DBA’s Amy M. Stewart on how she started Stewart Law Group. I was inspired but I had to leave early to catch a flight. At 30,000 feet, I wrote my business plan and we opened our doors six months later. Today that dream is a profitable fourlawyer firm and growing. So, it should go without saying that I am a proud member of the inaugural 2018 DBA WE LEAD class. But do note that I used the present tense to describe my membership because that is the most important part about DBA WE LEAD. While the formal programing is over one year, our WE LEADers network continues to this day. We are each other’s cheerleaders, advisors, and sounding boards. That the sisterhood of WE LEADers doesn’t end is perhaps the most impactful part of DBA WE LEAD because—let’s be frank—growing as a leader in your firm, the bar, and our community—is not a one-year thing—it’s a career-long commitment. HN

BY STACEY CHO HERNANDEZ

When I heard about DBA WE LEAD (Women Empowered to Lead), I knew I had to apply. This one-year leadership program focuses on empowering women and addressing the challenges we face in practice. This program resonated with me as I had just been promoted to partner. While making partner was a huge achievement, there was still so much to develop and learn. I was figuring out how to meet the new demands of my career, while also raising two young children. I realize how difficult it is to maintain your stride in private practice while also being a committed parent. The statistics don’t help either. They tell me and others like me: the odds are not in my favor. If you are ambitious then you might look at these numbers and say, “I need to find a different path, one where

my hard work and ambitions have a better chance of being rewarded.” I would be lying if I said I never contemplated this. But you know what got me through it? The mentoring I received from the partners at my firm. Many of them are parents and understand this struggle. They were willing to help and were invested in me. This mentoring had a lasting impact. DBA WE LEAD is committed to just that—mentoring and helping women lawyers expand their possibilities, despite the odds. It was important for me to see these women, to hear their struggles and how they’ve stayed in the game. It was also equally important for them to see me. This leadership program gave me a fresh perspective and newfound confidence to forge my own path. And best of all, it gave me a whole new group of sisters, all rooting for each other to rise together. HN

DVAP’s Finest JUSTIN BYNUM

Justin Bynum is a sole practitioner. Describe your most compelling pro bono case. A woman came into my office for assistance with her case against her abusive ex-husband. As with many abusers, the ex-husband was attempting to use the child as a means to harass and control my client. The case is ongoing, but I believe having representation has helped my client to feel more secure about the case. Why do you do pro bono? Dr. Mary McLeod Bethune, the matriarch of my Alma Mater, Bethune Cookman University, taught all of her students that the purpose of our educations is to “Enter to Learn; Depart to Serve.” Thus, I recognize that I have a duty to serve my community as an attorney. Pro bono allows me to serve the most vulnerable members of our community. Many people look at legal services and think they are out of reach because legal representation can be quite expensive. Pro bono ensures that people’s finances are not barriers to justice for them. What impact has pro bono service had on your career? Pro bono has had a profound impact on my career particularly because I have met some amazing people through my practice. In addition to the clients that I get to help, I have met some really amazing attorneys through the DBA Entrepreneurs in Community Lawyering Program. Under the guidance of Saedra Pinkerton and Laura Benitez Geisler, I have learned more about being a better advocate for my all of my clients. What is the most unexpected benefit you have received from doing pro bono? The most unexpected benefit of doing pro bono has been the opportunity to work with other lawyers who are committed to public service. The Dallas Bar Association is full of like-minded lawyers who are willing to give of their time, energy, and resources to help those in need.

Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.


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D al l as Bar A ssoci ati on l Headnotes 21

ADR/Solo & Small Firm

Marketing Ethically & Strategically in the Age of Coronavirus BY ALEXANDRA GECZI

In light of the effects that COVID-19 has had on our economy and our lives, lawyers need to pivot and get creative about marketing in order to thrive. But our rules require us to market ethically as well. This article outlines the general rules lawyers need to be aware of in their marketing, as well as strategic tips and creative ideas to flourish in these uncertain times.

Relevant Ethical Rules

The Texas Center for Legal Ethics lists the most frequently referenced rules for lawyers at www.legalethicstexas.com/ethics-resources/rules. ABA Model Rules of Professional Conduct relevant to marketing include MR 1.6, 1.9, 1.18, and 7.1-7.6. While this article does not go into detail about the rules, lawyers should follow several key principals: • Comply with the jurisdiction in which the individual lawyer is licensed, the jurisdiction in which the law firm has offices, and the jurisdictions at which the marketing communications are directed. Websites are an example of marketing that can potentially cross jurisdictional lines. • Avoid being false or misleading and avoid comparing your services to other firms. • Avoid soliciting potential clients under circumstances where a potential client would be unduly influenced in their choice of counsel. Beware of forums where there is an opportunity to interact with potential clients, including social media profiles where potential clients can message you. • Avoid revealing information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out

the representation, or the disclosure is permitted by exceptions, even if the information is publicly available or generally known. • Post waivers and disclaimers clearly. Consider including them on personal profiles as well. With the rules in mind, lawyers can then get creative in how they attract potential clients.

Marketing Strategies

One of the biggest challenges with marketing in the 21st century has been the overwhelming variety of choices available. What is the best marketing strategy? No one-size shoe fits all. However, if a lawyer or law firm understands its own goals and who it serves, then he or she can create a highly effective marketing plan and strategy. To identify your best marketing strategies, ask yourself these five questions: 1. Who is your ideal client? 2. What is the problem that you solve for that ideal client? 3. How do you educate your ideal client about the solution? 4. Why are you the right choice? 5. Why does your ideal client need to do this right now? Digging into these five critical questions will build the foundation of your marketing strategy. With a solid foundation in place, the specific marketing channels will become clear.

Marketing Channels

There are literally hundreds of ways to market—networking, internet ads, social media, television, etc. Do not try to do them all. Begin with two or three and get good at them. Build systems around each channel before moving on to another. Growth takes

time, but it is worth the investment. Which channel to start with? That depends on who you are trying to attract. When you understand who your ideal client is, you will understand the channels they consume, the problem they are trying to solve, and the terminology they use. For example, a middle-aged stay at home mom planning her high-asset divorce will have different problems than a childless millennial woman who just wants a quick divorce, and each of them is likely using different marketing channels to find what they are looking for.

The Possibilities are Endless

Any area of law can implement homerun marketing strategies. For example, a criminal attorney can focus on doctors who

get arrested for DUIs. That attorney can attract more of those clients by networking with professionals who have ties to the medical community, running ads in medical journals, and providing resources to hospital staff about the common but often unspoken problem of drug addiction in the medical profession. And why stop there? The attorney can then identify other ideal clients and apply specific techniques to attract those clients. In this way, an attorney builds a law firm through a strategic, focused marketing plan. In an area the size of the DFW metroplex, almost any niche can be lucrative and ethical, even in times of crisis. HN Alexandra Geczi is an attorney, mother, and founder of Alexandra Geczi PLLC. She can be reached at alex@familylawdfw.com.

HOW CAN YOU HELP THE DALLAS COMMUNITY? During this time of uncertainty and social distancing, here are some ways to help your fellow Dallasites.

Volunteer for the DBA LegalLine E-Clinic Donate to the DBA Home Project Donate supplies to Dallas County CPS workers Donate food to Minnie's Pantry or to the North Texas Food Bank via Virtual Food Drives Participate in the Senior Living Facility Drive Volunteer to Video Read to children at Vogel Alcove Details available at https://tinyurl.com/DBACOVIDCommunityHelp


22 H e a d n o t e s l D a l l a s B a r A s s o ciation

Jul y 2020

Firm Cash Flow and COVID-19: How Law Firms are Adjusting BY AMY MANN

Since the onset of the novel coronavirus in the U.S. and around the globe, it certainly has not been “business as usual” in most sectors of the economy—including the legal industry. Law firms have had to adjust much of the way they practice law, interact with clients, and execute necessary business processes in order to maintain social distancing guidelines, comply with shelterin-place orders (in some instances), and protect the health and well-being of their clients and colleagues. These changes have resulted in some fear and anxiety about maintaining a steady cash flow. While these concerns are certainly understandable, many law firms are fortunately discovering a technology that

can help them maintain a steady cash flow and better serve their clients during this experience: online legal payment solutions.

Improved Payment Speed

Consider for a moment just how much time is usually spent on traditional payment methods. First, you mail your client your itemized bill, which can take as much as a week or more to arrive. Your client then writes a check and sends it through the mail, so add another week on top of that. When you finally receive the check, you then have to take it down to the bank to deposit it (or process it through your phone). All in all, from writing your bill to receiving funds, you are looking at as much as two to three weeks. Now, with social distancing measures in place, these timelines

have been extended considerably. Comparatively, with online payments this entire process is handled within a few days. In fact, one survey of legal industry professionals found that those who accept payments online get paid 39 percent faster on average. With an online payment solution, you send your client a payment link, which your client can pay instantly from the safety and comfort of their home. You get a near-immediate confirmation email when payment is submitted, and the transaction shows as pending on your bank account within seconds. Firms’ AR departments have found that this strategy is not just effective for bringing in payment for new invoices in a timely manner. They have also found success with bringing in money on unpaid invoices simply by making it easy and safe for their clients to pay.

Create Predictable Cash Flow with Recurring Payments

Another way that payment solutions are helping law firms and their clients during this time is by allowing them to eas-

ily set up scheduled payment plans. By enabling recurring payments, law firms are able to extend their legal services to clients who might be struggling financially at this time and offer the ability to pay for legal services over a period of time. Not only are these recurring payments a benefit to law firm clients, we have heard from many firms that they also appreciate payment plans right now, as it lets them create a predictable, consistent cash flow. Rather than having to wonder if a client is going to be able to pay their final invoice at the conclusion of a case, law firms are able to schedule regular payments for clients at agreed upon intervals, giving firms confidence that they will have the cash flow they need to maintain their business’ operating costs. Adjusting to new ways of working and overcoming obstacles is difficult for all law firms. Thankfully, by embracing these solutions, you can quickly adapt to the challenges at hand and future-proof the payments process for your firm, benefitting your cash flow for years to come. HN Amy Mann is the Director of Creative Services at LawPay. She can be reached at amann@lawpay.com

Fears Nachawati Supports Justice Forever Fund CONTINUED FROM PAGE 1

DBF UPDATE

Because of COVID-19, the Dallas Bar Foundation has had to make adjustments to many of our long-standing programs and initiatives. Our schedule has changed but the DBF maintains its work of supporting the profession and community through our grants. We will keep you updated as changes occur and we thank you for your continued support. Many of our annual student clerkship programs were cancelled this summer. However, a new clerkship at the USPTO office was awarded to Danielle Zapata, UNT 2L, while Alysha Hobbs, Texas A&M 2L, was awarded a stipend for her work with a Dallas non-profit organization helping immigrant families in need. Additionally, the DBF Board of Trustees approved a grant of $14,000 to support law students staffing a summer Legal Helpline at SMU. The law students will assist the public with issues arising as a consequence of the COVID-19 pandemic. Attorneys have volunteered to serve as mentors for the students. The 29th Annual Fellows Luncheon honoring Judge W. Royal Furgeson, Jr. as the Fellows Justinian Award recipient has been rescheduled for Friday, October 2nd. The Class of 2020 Dallas Bar Foundation Fellows will be inducted at the luncheon. We will continue to accept nominations for new Fellows through the remainder of this year. The Don McCleary – Gardere Scholarship was awarded to Alexus Esquibel, SMU 3L, who will be introduced at the Fellows Luncheon. Bar None XXXV, DOCKETMAN, cancelled its performances in June at the Greer Garson Theater. This was a huge disappointment for the Bar None Cast & Crew especially as they looked forward to celebrating their 35th Anniversary. Bar None, the major fundraiser for the Sarah T. Hughes Diversity Scholarship, may consider other options to support the scholarships. An Evening with Walter Isaacson, scheduled for October 12th has been cancelled and will be rescheduled in 2021. We thank the many sponsors who have supported this event over the past 9 years and their commitment to the Sarah T. Hughes Diversity Scholarships. Three students were selected in March as recipients of the Sarah T. Hughes Diversity Scholarship. They are Jessica Lee and Cayro Bustos, 1L’s at SMU, and Alysha Hobbs, 2L at Texas A&M. We will have a virtual presentation ceremony to introduce the scholarship recipients. The recipient of the Stephen Philbin Award for Excellence in Legal Reporting, a statewide award for journalists, was announced in March. The winning entry was submitted by Nadia Hamdan, of KUT 90.5 in Austin. Nadia and her fellow journalists received a $5,000 cash award in recognition of their work, The Provability Gap.

renters and homeowners in negotiations and litigation with landlords and lenders. Essential Needs. Many individuals are now struggling to access social security, veterans, unemployment, and other benefits, particularly as some programs have been modified by recent legislation. These benefits are critical to clients’ ability to obtain food and other essentials. DVAP’s volunteer attorneys help clients navigate these complex systems to ensure that they get the help they need, when they need it most. The justice gap, already daunting, continues to be exacerbated by the COVID-19 crisis. The nature of the pandemic has made it impossible for DVAP to hold its regular in-person clinics. DVAP and Hunton Andrews Kurth worked together expeditiously to set up a framework for weekly virtual legal clinics to assist those in need. Applicants fill out

an application online and are then called by volunteer attorneys on Thursdays for an initial intake interview. DVAP staff review and staff the case to see if it can be placed with a volunteer attorney for further assistance. DVAP’s weekly virtual clinic model is currently being expanded to include monthly virtual wills clinics and driver’s license restoration clinics, as the program continues to pivot to provide crucial legal services in this new normal. “DVAP is among the very best programs and being able to provide financial support through the Justice Forever Fund during this critical juncture is an investment in our community and its most vulnerable citizens,” stated Bryan Fears. Many thanks to the Fears Nachawati Law Firm for their philanthropic support of the Justice Forever Fund during the COVID-19 crisis and into the future. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.

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D al l as Bar A ssoci ati on l Headnotes 23

ADR/Solo & Small Firm

Virtual Mediations: Building Client Engagement for Success BY HON. NANCY HOLTZ

Even with the business world starting to reopen in the midst of the COVID-19 pandemic, all is not back to normal and much has changed. A new normal has been developing throughout Dallas and beyond, including in the legal community. In light of court closures with the resulting postponed motion hearings and trials, the options for resolving disputes have been drastically reduced. One long favored pathway toward resolution - mediation - has also been impacted by the COVID-19 pandemic. Social distancing and other limitations, such as travel restrictions, have made it very difficult, if not impossible, to engage in live mediation of cases. But many clients still clamor to get their disputes resolved and are impatient and frustrated by the current legal environment. Given the challenges of participating in a live mediation, coupled with, for some, a continued eagerness to resolve disputes, many are choosing to participate in virtual mediations through remote platforms such as Zoom. These virtual mediations have been embraced by the legal community for the simple reason that they have been successful. There are a number of factors which contribute to that success. To begin with, there are actually advantages to conducting a virtual mediation: it is easier to coordinate schedules, not having to worry about making a flight at the end of the day and no hotel expenses; and it is easier for decision makers to participate remotely.

But fundamentally, a successful mediation requires the parties to be committed to resolution by settlement. This commitment can only occur when the parties are engaged in the process of mediation. There is concern that the engagement needed for mediation success requires the human element. Some attorneys are reluctant to proceed to a virtual mediation for fear that this human element may be missing in mediating via Zoom. But—with your help—we can achieve the requisite level of engagement in a virtual mediation. Here are some steps we can all take. You can work with a mediator experienced with Zoom. To be effective, a mediator needs to be entirely focused on the mediation itself and should not be distracted by or lacking confidence in the technology. Plus, your client needs to feel connected to the mediator which is difficult if the mediator appears ill at ease with the platform. Like the mediator, you too need to display “Zoom fluency.” Pay attention to camera angle, lighting, and background. You want your client to feel that you are sitting right there, boosting their confidence, and thus engagement, in the process. A pre-mediation session, in which your client has the opportunity to experience the platform and technology first hand, can prove invaluable. This can bolster client confidence when mediation day arrives. Plus, this provides a great opportunity for the mediator to break the ice with your client prior to the mediation day.

Even in live mediations, parties can feel disengaged when their attorneys do all or most of the talking. A client can be left feeling that even though it is their case and supposed to be their day, they are relegated to the role of an observer. In a live mediation, a client can usually find a way to speak up, ask questions and otherwise get engaged. But virtual mediations, by nature, come with built in distance: the participants are all remote from each other, as they are, literally, in separate locations. The risk of disengagement is high: your client is sitting alone, probably at home, in a makeshift office, feeling quite detached from the process. Get your client engaged. Your client needs to be asked questions and offered opportunities to weigh in. While this may run counter to the tactical prefer-

ences of some attorneys, it is essential to having an engaged client who will otherwise feel like little more than a disembodied head on a screen. Virtual mediations will never completely replace live mediations. But given some of the advantages and flexibility of virtual mediations, there will no doubt be a continued place for them long after the pandemic subsides and everyone is back to the office full time. In the meantime, as long as virtual mediations are a viable option, with these simple steps, you can help get and keep your client engaged in the virtual mediation. This crucial ingredient of client engagement will contribute to a successful virtual mediation day. HN Judge Nancy Holtz (Ret.) is a full time neutral at JAMS, Dallas and can be reached at nholtz@jamsadr.com

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24 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€

Jul y 2020


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